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THE  NEW  PRIMARY  LAW  IN  WISCONSIN. 


BY  HOWARD  L.  SMITH,  PROFESSOR  OF  LAW,  UNIVERSITY  OF 
WISCONSIN. 


In  March,  1898,  the  present  Governor  of  Wisconsin, 
just  elected  a United  States  Senator,  addressed  the  Uni- 
versity of  Michigan  in  this  city  on  the  subject,  then  a 
forlorn  hope,  of  the  reform  of  primary  elections.  De- 
feated as  a candidate  for  his  party  nomination  for  Gov- 
ernor in  1896  by  the  instability  of  delegates  who  had  been 
elected  as  his  supporters,  but  who,  as  his  friends  asserted, 
had  been  unable  to  withstand  the  blandishments  of  a 
political  machine  that  was  opposed  to  him,  his  attention 
was  naturally  directed  to  the  destruction  of  that  machine. 
He  thought  he  saw  that  its  strength  was  rooted  in  the 
caucus  or  primary  election  and  in  the  convention  system 
of  nomination  which  was  so  constituted  as  to  be  really  in 
the  control  of  the  professional  or  semi-professional  poli- 
ticians, while  nominally  and  theoretically  a perfect 
medium  of  popular  expression.  Perhaps  no  human  in- 
strumentalities were  ever  devised  more  faultless  in  theory 
than  the  caucus  and  convention.  In  an  ideal  world, 
among  faultless  and  public-spirited  citizens,  they  must 
constitute  a well-night  perfect  medium  for  the  expression 
of  the  popular  will.  But  the  world  is  not  ideal  and  men 
are  not  angels,  nor  all  of  them  sufficiently  public-spirited 
to  perform  disagreeable  duties.  So  the  problem  which 
presented  itself  to  the  chagrined  and  defeated  candidate 
was  to  find  and  secure  the  adoption  of  some  sort  of 
machinery  by  which  it  would  be  at  least  more  difficult 
for  professional  politicians  and  party  bosses  to  take 
advantage  of  the  carelessness,  indifference,  and  inexpert- 
ness of  the  unsophisticated  and  not  too  enthusiastic  voter. 


74  MICHIGAN  POLITICAL  SCIENCE  ASSOCIA  TION 


It  is  to  be  noted  that  the  convention  of  whose 
misrepresentative  action  complaint  was  made  was  itself 
the  fruit  of  a practically  untrammeled  and  unregulated 
caucus  and  convention  system.  For  while  there  had, 
at  each  session  of  the  Legislature  since  1891,  been  legis- 
lation looking  to  the  bringing  of  caucuses  and  conven- 
tions within  the  pale  of  the  law,  and  to  the  regulation  of 
their  proceedings,  yet  such  legislation  had  related  to  one 
county  in  the  State  only,  and  had  been  very  rudimentary 
and  imperfect.  Moreover,  such  legislation  as  there  had 
been,  had  not  taken  the  form  of  direct  nominations  of 
candidates  in  the  caucuses,  but  solely  that  of  attempted 
regulation  of  the  manner  of  conducting  caucuses.  But 
the  complaint  of  the  candidate  was,  not  that  the  caucuses 
had  failed  to  represent  the  people,  but  that  the  delegates 
chosen  at  the  caucuses  had  failed  to  truly  represent  the 
caucuses  in  the  convention.  The  particular  problem 
suggested,  then,  by  the  exigencies  of  the  moment  was, 
not  so  much  to  reform  the  caucus,  as  how  to  effectu- 
ally secure  the  registration  of  the  will  of  the  caucus.  If 
this  was  to  be  accomplished  as  heretofore  through  the 
mouth  of  caucus  delegates  assembled  in  convention,  then 
some  way  must  be  devised  to  make  the  delegates  ‘‘stay 
put.”  The  only  alternative  was  to  do  away  with  the  con- 
vention of  delegates  altogether,  and  provide  some  means 
by  which  the  voters  in  caucus  could  register  their  wishes 
directly,  without  the  intervention  of  any  middlemen  to 
be  lost,  strayed  or  stolen  on  the  road  between  the  caucus 
and  the  nomination. 

It  was  this  alternative  that  the  Governor  adopted,  and 
as  to  which  he  said  in  the  address  before  referred  to, 
“The  fight  is  on.  It  will  continue  to  victory.  There  will 
be  no  halt,  and  no  compromise.” 

The  fight  has  been  on  ever  since  without  halt  or  com- 
promise, and  has  continued  to  victory.  We  may  now 
survey  the  battlefield,  and  consider  the  results.  The 


THE  NEW  F HIM  ARY  LAW  IN  WllSCONSlN. 


75 


measure  advocated  was  enacted  by  the  Legislature  of 
1903,  referred  to  the  people  at  the  last  general  election, 
and  adopted  by  a large  majority.  It  has  yet  to  undergo 
the  test  of  actual  operation.  The  fight,  throughout,  has 
been  pre-eminently  the  Governor’s.  Mr.  LaFollette  has 
known  exactly  what  he  wanted,  and  refused  to  accept 
makeshifts  or  subterfuges,  or  half-way  measures.  A 
very  adroit  and  successful  practical  politician  himself,  he 
has  seen  at  once  through  every  scheme  of  substitution 
and  amendment  with  which  the  prolific  friends  of  “re- 
form in  general,”  but  opponents  of  all  particular  measures 
of  reform,  beset  all  schemes  of  regeneration,  and  has  set 
himself  like  a stone  wall  against  them.  He  flogged  a 
more  or  less  indifferent  party  into  line,  imbued  it  with 
some  of  his  own  enthusiasm,  and  kept  its  front  to  the 
enemy  until  the  measure  was  passed.  Scores  of  times, 
during  the  campaign  of  more  than  six  years,  his  indomit- 
able preseverance  alone  stood  between  the  scheme  and 
defeat.  It  is,  more  essentially  than  most  laws,  the  crea- 
tion of  one  man.  It  could  scarcely  be  more  so  were  it  an 
imperial  ukase.  If  it  succeeds  to  anything  like  the  extent 
anticipated  by  him,  he  must  receive  credit  for  a large 
measure  of  prophetic  and  constructive  statesmanship; 
while  if  it  fails  he  will  hardly  be  allowed  to  escape  a large 
measure  of  the  responsibility. 

The  steps  in  the  progress  of  the  reform  are  interest- 
ing, and  not  altogether  uninstructive.  The  first  bill  was 
introduced  in  1897  at  the  very  next  session  of  the  Legis- 
lature after  the  convention  of  1896.  It  abolished  all 
conventions  and  provided  for  the  nomination  of  all 
officers  at  the  primary.  Only  one  primary  was  provided 
for,  which  was  to  be  held  in  September  of  each  year. 
Probably  the  weakest  features  of  the  bill  was  that  all 
officers,  not  only  those  to  be  elected  in  November,  but 
those  to  be  chosen  in  the  coming  spring  were  to  be  nomi- 
nated at  this  one  September  primary.  This  provision 


76  MICHIGAN  POLITICAL  SCIENCE  ASSOCIATION. 


was  defended  chiefly  on  two  grounds.  First,  economy; 
second,  the  greater  interest  that  it  was  supposed  would 
result  in  the  primary,  and  the  consequent  larger  attend- 
ance. It  is  probable  that  these  advantages  do  not  out- 
weigh the  disadvantages  inhering  in  the  mixing  up  of 
the  largely  non-partisan  and  local  spring  elections  with 
the  fall  candidacies,  when  party  spirit  is  highest.  The 
bill  provided  that  all  primaries  of  all  parties  should  be 
held  on  the  same  day,  and  at  the  same  place.  To  have 
their  names  placed  on  the  primary  election  ballots,  can- 
didates were  to  file  nomination  papers  signed  by  a certain 
number  of  electors.  Though  not  so  comprehensive  in 
scope,  or  detailed  in  its  arrangements  as  some  of  the  later 
bills,  its  general  purpose  and  effect  were  the  same. 

Instead  of  passing  the  law,  the  Legislature  enacted 
one  (Laws  of  1897,  ch.  312)  regulating  the  caucuses  for 
city  and  general  elections  in  the  city  of  Milwaukee,  and 
for  general  elections  in  the  other  cities  of  the  State,  with 
a provision  that  as  to  city  elections,  other  cities  than 
Milwaukee  might  adopt  the  provisions  if  they  choose.  In 
general,  the  purpose  and  effect  of  this  law  were  simply 
to  regulate  in  some  particulars  the  conduct  of  caucuses. 
It  did  not  pretend  to  interfere  with  the  delegate  con- 
vention system.  Both  these  and  the  caucuses  were  still 
to  be  called,  constituted,  and  conducted  by  the  party 
committees,  who  were,  however,  required  to  give  certain 
notices,  and  observe  certain  formalities  in  the  conduct 
of  the  caucuses.  Probably  the  most  singular  feature  of 
the  law  was  that  candidates  whose  names  were  to  be 
placed  on  the  official  caucus  ballots  were  to  be  proposed  at 
a “preliminary  meeting”  of  voters  of  the  party.  At  this 
“preliminary  meeting”  any  person  might  propose  a can- 
didate whose  name  thereupon  went  upon  the  caucus  bal- 
lot. The  attempt  to  cure  the  evils  of  the  caucus  by 
changing  its  name  seemed  peculiarly  naive.  The  sub- 
stantive provisions  of  the  law  were  wholly  inadequate. 


THE  NEW  PRIMARY  LAW  IN  WIISCONSIN. 


77 


and  no  sufficient  machinery  was  provided  or  penalties 
inflicted  to  make  effective  even  so  many  of  its  provisions 
as  were  substantially  good.  That  it  did  not  satisfy  the 
reformers  goes  without  saying. 

The  next  session  of  the  Legislature  came  in  1899, 
and  the  reformers  were  ready  with  another  bill  (the 
Bryant  bill)  resembling  in  its  main  features  the  defeated 
bill  of  1897,  but  somewhat  wider  in  scope.  It  provided 
for  direct  nomination  at  the  primaries  of  all  State,  Con- 
gressional, Legislative  and  county  officers  by  simultane- 
ous primaries  of  all  parties.  Previous  registration  was 
required  as  well  as  a disclosure  of  the  political  affiliations 
of  the  the  voter.  The  platform  was  to  be  promulgated 
by  the  State  Central  Committee,  and  all  expenses  borne 
by  the  political  parties.  The  Bryant  bill  met  with  the 
same  fate  as  its  predecessor,  but  again  the  Legislature 
felt  the  necessity  of  “pandering  to  the  better  elements,” 
and  passed  in  its  place  another  caucus-regulating  bill 
(Laws  of  1899,  ch.  341).  As  this  law  remained  in  force 
up  to  the  last  election,  if  indeed  it  is  not  still  in  force,  I 
shall  pause  to  examine  its  provisions. 

It  applies  to  all  portions  of  the  State  except  Milwau- 
kee County,  which  was  already  provided  for  by  the  law 
of  1897.  It  does  not  provide  for  simultaneous  caucuses 
of  all  parties,  but  that  all  caucuses  of  each  party  in  each 
county  shall  be  held  the  same  day,  which  day  shall  be 
fixed  by  the  respective  county  committees.  These  com- 
mittees are  to  give  certain  notice  by  publication  of  the 
time,  place,  and  purpose  of  holding  the  caucus.  The 
apportionment  of  the  delegates  to  conventions  is  to  be  by 
the  party  committee.  It  is  made  a misdemeanor  for  any 
but  a cjualified  elector  of  the  caucus  district  to  vote 
thereat,  and  for  anyone  who  has  already  voted  at  the 
caucus  of  one  party  to  vote  at  that  of  another  party. 

The  chairman  of  the  caucus  is  the  chairman  of  the 
local  political  committee,  and  the  secretary  and  tellers,  as 


78  MICHIGAN  POLITICAL  SCIENCE  ASSOCIATION. 


well  as  the  chairman,  when  the  constituted  chairman  is 
not  present,  are  to  be  chosen  by  the  electors  present  at  the 
opening  of  the  caucus.  The  fine  hand  of  the  political 
manipulator  is  evident  in  this  provision.  The  chairman 
and  secretary  shall  “on  taking  their  places”  take  an  oath, 
before  whom  the  law  does  not  provide,  and  it  must  in  a 
vast  number  of  cases  be  true  that  no  one  is  present  who 
can  administer  an  oath.  The  law  does  not  provide  what 
officers  may  be  voted  for  directly  at  the  caucus,  but  the 
provisions  for  the  canvass  and  return  of  the  result  are 
inconsistent  with  any  other  candidates  being  so  voted 
for  than  those  whose  jurisdiction  is  coterminous  with  or 
smaller  than  the  caucus  district, — that  is  to  say,  the 
officers  of  towns,  villages,  school  districts  and  wards  of 
cities.  As  to  all  other  officers,  the  function  of  the  caucus 
under  this  law  is  to  elect  delegates  to  a nominating  con- 
vention. There  is  no  official  ballot  at  the  caucus.  The 
voting  is  to  be  by  ballot  either  written  by  the  voter,  or 
printed  on  plain  white  paper,  and  is  to  be  deposited  in  a 
“box  or  other  receptacle”  provided  by  the  caucus  officers. 
A poll-list  of  those  who  vote  is  to  be  kept,  and  lodged 
with  the  city,  town  or  village  clerk. 

The  vote  is  to  be  canvassed  and  returned  by  the  cau- 
cus officers.  The  curious  provision  is  made  that  in  the 
case  of  candidates  nominated  at  the  caucus  “the  candi- 
date receiving  a majority  of  all  the  votes  shall  be  declared 
the  nominee  of  the  caucus,  and  his  election  shall  be  cer- 
tified,” etc.  Sec  9. 

No  provision  is  made  for  what  must  be  the  far  com- 
moner case  of  no  candidate  having  received  “a  majority 
of  all  the  votes.”  Apparently  in  this  case  there  would  be 
no  nomination.  Bribery,  intimidation  and  interference 
of  any  sort  with  the  operations  of  the  law  are  made  mis- 
demeanors. 

While  this  law  bristles  with  defects,  its  capital  in- 
sufficiencies may  be  said  to  be  three. 


THE  NEW  PRIMARY  LAW  IN  WISCONSIN. 


79 


I.  It  does  not  make  the  caucus  an  official  function 
conducted  by  officers  of  the  State  at  the  expense  of  the 
State  or  lesser  municipalities,  but  leaves  it  and  all  its 
machinery  in  the  hands  of  the  political  managers. 

II.  It  provides  no  official  ballot,  but  leaves  anybody 
to  provide  any  ballot  or  assortment  of  ballots  so  long  only 
as  they  be  on  plain  white  paper. 

III.  It  permits  only  a very  insignificant  amount  of 
direct  nominations  at  the  caucus,  and  does  not  require 
any. 

The  requirement  of  an  oath  from  the  caucus  officials 
and  the  denunciations  of  certain  pains  and  penalties 
against  the  violators  of  the  law  are  the  sort  of  sop  that 
almost  any  Legislature  will  throw  to  almost  anybody 
whose  clamor  is  so  insistent  that  it  must  be  noticed.  This 
law  has  been  in  force  ever  since  its  adoption  in  1899,  and 
is  now  about  to  be  superseded  by  the  law  of  1903, 
recently  approved  by  the  people’s  referendum  vote.  No 
particular  difficulty  has  been  experienced  in  its  adminis- 
tration, nor  can  it  be  said,  so  far  as  appears,  that  any 
particular  benefits  have  flowed  from  it  . 

It  will  have  been  obvious  long  before  this  that  this 
law  was  not  likely  to  satisfy  the  reformers.  It  was  fol- 
lowed in  1900  by  the  election  of  the  chief  reformer  as 
Governor  of  the  State.  As  part,  in  fact  the  chief  item  of 
his  program,  a well-considered  and  far-reaching  primary 
election  bill  was  introduced  into  the  Legislature,  but,  by 
reason  of  factional  differences  in  the  dominant  party, 
failed  of  enactment  into  law.  I shall  not  linger  over  its 
provisions  since  they  neither  became  law,  nor  resulted 
in  the  enactment  of  any  other  law.  A much-emasculated 
bill  did  pass  the  Legislature  by  a small  majority,  but  was 
vetoed  by  the  Governor  as  an  insincere  attempt  to  head 
off  genuine  reform.  Another  campaign  resulted,  in 
1902,  in  the  re-election  of  the  Governor,  and  the  return  of 
a Legislature  more  in  harmony  with  his  views.  As  a 


80  MICmOAJS  POLITICAL  SCIENCE  ASSOCIATION. 


result  of  their  deliberations  there  was  enacted  in  1903, 
subject  to  the  approval  of  the  people  at  the  general  elec- 
tion of  1904,  what  I suppose  to  be  one  of  the  most  sweep- 
ing primary  election  laws  upon  the  statute  books  of  any 
State  (Ch.  451,  Laws  of  1903).  The  approval  provided 
for  has  been  given,  and  it  is  now  the  law,  though  there 
is  a difference  of  opinion  whether  it  goes  into  effect  at 
the  spring  elections  of  1905,  or  the  general  elections  in 
the  fall  of  1906.  This  law  consists  of  twenty-eight  sec- 
tions, many  of  them  of  considerable  length  and  com- 
plexity, and  I should  quite  despair  of  making  clear  to 
you  by  oral  exposition  all  of  its  provisions  within  the 
limits  of  this  paper.  But  its  main  purposes,  and  the  prin- 
cipal means  adopted  to  accomplish  them  can  perhaps  be 
be  sufficiently  exposed  within  reasonable  limits. 

To  avoid  repetition  and  an  undue  trespassing  upon 
your  patience,  I shall  make  my  comments  upon  some  of 
the  various  sections  of  the  law  as  I come  to  them,  rather 
than  first  to  summarize  the  entire  law,  and  then  go  back 
to  criticize,  believing  that  for  oral  exposition  such  a 
method  will  be  less  confusing  than  the  other. 

It  will  be  remembered  that  the  Australian  system  of 
voting  is  a fixed  institution  in  Wisconsin;  that  the  cen- 
tral feature  of  that  system  is  the  official  ballot  prepared 
by  the  State,  with  the  names  of  the  candidates  printed 
thereon,  and  that  the  problem  is  to  determine  what  names 
shall  be  printed  thereon.  It  is  to  determine  this  that 
caucuses  and  conventions  have  been  chiefly  held.  The 
law,  then,  provides  in  the  first  place  (Section  2)  that  this 
question  shall  hereafter  be  determined  only  by  the  results 
of  primary  elections  (called  primaries)  held  pursuant  to 
the  act,  and  by  direct  votes  cast  at  the  primaries.  The 
law  does  not  apply  at  all  to  special  elections  to  fill  vacan- 
cies nor  to  the  election  of  local,  judicial,  and  educational 
officers  who  are  chosen  in  the  spring,  except  in  cities, 
where  it  applies  equally  to  the  local  spring  and  general 


THE  NEW  PBIMARY  LAW  IN  WISCONSIN. 


81 


fall  election.  Justification  for  this  exception  is  no  doubt 
found  in  the  resulting  economy  and  in  the  fact  that  with 
us  the  rural  local  and  judicial  elections  are  little  domi- 
nated by  partisanship,  and  are  usually  conducted  without 
notable  scandal  or  manipulation.  It  will  be  an  easy 
matter  to  extend  the  system,  once  established,  to  them 
should  there  seem  to  be  any  necessity  therefor. 

For  all  caucuses,  and  conventions,  then,  with  the 
exceptions  above  noted,  there  is  substituted  a primary 
election  to  be  held  on  the  first  Tuesday  in  September  pre- 
ceding a general  election,  and  two  weeks  before  the 
spring  elections  in  cities.  This  primary  is  made  a com- 
plete official  function.  It  is  to  be  conducted  by  the  same 
officers  who  officiate  at  the  election  itself,  in  the  official 
booths,  upon  official  notice  given  by  the  State,  entirely  at 
the  expense  of  the  State,  and  subject,  in  all  essential 
respects,  to  the  laws  governing  the  conduct  of  other 
elections. 

Sixty  days  before  the  date  of  the  primary,  notice  is 
to  be  sent  by  the  Secretary  of  State  to  all  county,  town, 
city  and  village  clerks,  of  the  officers  to  be  nominated, 
and  these  several  functionaries  are  required  to  give  by 
a prescribed  period  of  posting  and  publication,  notice  to 
the  constituencies  to  the  same  effect,  as  also  of  the  time 
and  place  of  holding  the  primary,  precisely  as  in  case  of 
the  election  itself.  On  the  day  appointed  the  voters  repair 
to  the  regular  polling  places  which  are  to  be  kept  open 
from  eight  o’clock  in  the  morning  until  eight  o’clock  at 
night,  and  in  cities  from  six  o’clock  in  the  morning 
until  nine  o’clock  at  night.  The  voter  finds  the  polling- 
place  in  charge  of  the  election  and  registration  officials 
with  the  party  challengers  permitted  to  be  present  at  the 
primary,  and  all  others  kept  at  a distance,  precisely  as  at 
an  election.  Having  arrived,  he  is  permitted  to  vote, 
provided  he  has  qualified  or  does  qualify  to  vote  at  the 
election — not  otherwise.  That  he  may  qualify,  if  he 


82  MICHIGAN  POLITICAL  SCIENCE  ASSOCIA  TION. 


wishes,  primary  day  and  the  preceding  day  are  made 
registration  days  in  all  places  where  registration  is 
required.  Finding  himself  qualified,  or  making  himself 
so,  the  voter  is  furnished  with  an  Australian  ballot,  pre- 
pares it  in  his  booth,  and  it  is  deposited  in  the  same 
ballot-box  used  to  receive  his  vote  in  November. 

Before  proceeding  further  it  is  necessary  to  consider 
this  ballot  furnished  to  the  voter.  What  names  will  it 
contain,  how  will  they  be  arranged,  and  how  did  they  get 
there  ? The  only  way  in  which  names  get  upon  the  pri- 
mary ballot  is  by  petition.  Such  petition  must  be  filed  at 
least  thirty  days  before  the  primary,  for  all  officers  repre- 
senting more  than  one  county  with  the  secretary  of  state, 
for  all  other  officers,  except  city  officers,  with  the  county 
clerk,  and  for  city  officers  with  the  city  clerk.  In  addition 
to  the  signers’  name,  it  must  contain  their  address, 
and  date  of  signing.  It  formally  proposes  A.  B.,  giving 
his  address,  as  a candidate  for  the  specified  office  at  the 
primary  in  question.  Curiously,  it  says  nothing  about 
the  particular  party  ticket  upon  which  he  is  to  be  nomi- 
nated, but  recites  the  partisan  affiliations  of  the  signers, 
and  contains  a declaration  that  they  intend  to  support  the 
candidate  named  for  the  office.  No  signer  shall  sign 
more  than  one  paper  for  the  same  office,  and  all  signers 
of  each  separate  paper  shall  reside  in  the  same  precinct, 
except  in  case  of  state  officers,  when  they  must  all  reside 
in  the  same  county.  Each  such  nomination  paper  must 
have  appended  to  it  an  affidavit  of  a qualified  elector  that 
he  is  personally  acquainted  with  all  the  signers;  that  he 
knows  them  to  be  electors  of  the  precinct  or  county  as  the 
case  may  be;  that  he  knows  they  signed  the  same  with 
full  knowledge  of  the  contents;  that  their  residences  and 
the  dates  of  signing  are  correctly  stated,  and  that  he 
himself  intends  to  support  the  same  candidate.  It  is 
difficult  to  see  what  more  could  reasonably  be  required  to 
insure  the  bona  Udes  of  the  nomination  papers. 


THE  NEW  PRIMABY  LAW  IN  WISCONSIN. 


83 


That  men  may  not  be  nominated  or  candidated 
against  their  will,  each  candidate  must  file  with  his  papers 
a declaration  that  he  will  qualify  and  serve  if  nominated 
and  elected. 

The  number  of  signers  required  varies  for  different 
offices,  as  follows: 

(a)  If  for  a state  office,  at  least  one  per  cent  of  the 
voters  of  his  party  for  presidential  electors  at  the  last 
general  election  in  each  of  six  counties,  and  in  the  aggre- 
gate not  less  than  one  per  cent  of  the  total  vote  of  his 
party  in  the  state.  Under  this  provision,  coupled  with 
the  inhibition  against  signing  more  than  one  nomination 
paper  for  the  same  office,  it  will  be  seen  that  not  more 
than  one  hundred  candidates  of  each  party  for  the  same 
office  can  get  on  the  official  ballot. 

(b)  If  for  a representative  in  Congress,  by  at  least 
two  per  cent  of  the  voters  of  his  party  for  presidential 
electors  at  the  last  general  election  in  at  least  one-tenth 
of  the  election  precincts  in  each  of  at  least  one-half  of 
the  counties  of  the  congressional  district,  and  in  the 
aggregate  not  less  than  two  per  cent  of  the  total  vote  of 
his  party  in  such  district. 

The  number  of  possible  candidates  of  each  party  is 
here  reduced  to  fifty. 

(c)  If  for  an  office  representing  less  than  a con- 
gressional district,  or  a county  office,  by  at  least  three 
per  cent  of  the  party  vote  for  presidential  electors,  in  at 
least  one-sixth  of  the  election  precincts,  and  not  less  than 
three  per  cent  of  the  total  party  vote  in  such  district. 

Any  political  organization  casting  not  less  than  one 
per  cent  of  the  total  vote  at  the  preceding  general  election 
may  be  thus  represented. 

Non-partisan  candidates  may  be  placed  upon  the 
ballot  by  the  filing  of  nomination  papers  signed  by  not 
less  than  two  per  cent  of  the  total  vote  for  the  office  at 


84  MICHIGAN  POLITICAL  SCIENCE  ASSOCIATION. 


the  preceding  general  election,  distributed  as  above  pro- 
vided. 

Two  criticisms  of  these  provisions  occur  to  me. 

1.  It  is  made  unduly  difficult  for  a non-partisan  can- 
didate to  get  upon  the  ballot.  In  the  case  of  a state 
office  for  example  he  must  have  on  his  nomination  papers 
two  per  cent  of  the  total  vote  in  the  state,  while  the  par- 
tisan candidate  needs  but  one  per  cent  of  his  party  vote. 
Inasmuch  as  this  privilege  is  extended  to  the  partisan 
candidate,  whose  party  polled  as  low  as  one  per  cent  of 
the  total  vote,  it  is  obvious  that  the  minimum  number  of 
sponsors  required  of  a non-partisan  candidate  is  two 
hundred  times  greater  than  the  minimum  number  which 
may  be  required  of  a partisan  candidate,  and  in  almost 
every  case  would  be  very  much  larger.  With  respect  to 
congressional  offices  the  proportion  of  the  two  minima  is 
one  hundred  to  one,  and  with  respect  to  local  offices 
sixty-seven  to  one.  No  good  reason  occurs  to  the  writer 
why  it  should  be  made  so  much  more  difficult  for  non- 
partisan candidates  to  get  on  the  ballot  than  for  partisan 
candidates.  It  surely  cannot  be  because  there  is  likely 
to  be  a flood  of  such  candidates  to  encumber  the  ballot. 
The  likelihood  of  any  such  inconvenience  is  far  greater 
on  the  partisan  tickets  than  on  any  non-partisan  one. 
For  my  part  I am  unable  to  justify  the  discrimination  on 
any  ground  that  seems  tenable. 

2.  But  a more  serious  objection  seems  to  be  that 
there  is  no  way  by  which  a new  party,  no  matter  how 
strong,  can  ever  get  upon  the  ballot.  The  doors  of 
admission  to  this  ballot  are  but  two,  viz.,  a record  of  votes 
cast,  as  a party,  at  the  last  election,  and  the  non-partisan 
nomination  papers.  In  the  life  of  every  party  there  is 
always  a time  when  it  has  cast  no  votes  at  the  last  general 
election.  The  only  way,  then,  that  it  can  get  its  candi- 
dates on  the  ballot  will  be  by  the  filing  of  non-partisan 
nomination  papers.  But  this,  as  we  shall  see,  will  result 


THE  ISEW  PBIMARY  LAW  IN  WmCONtHN. 


85 


in  their  being  placed  on  a non-partisan  ticket,  and  trans- 
ferred thereafter  to  a non-partisan  column  on  the  elec- 
toral ballot.  The  votes  cast  for  them,  then,  will  be  non- 
partisan votes,  not  new-party  votes,  and  they  will  be  no 
better  off  with  respect  to  getting  on  the  ballot  next  time 
than  they  were  the  first;  nor  under  the  law  as  it  stands 
will  any  possible  increase  in  strength  or  participation  in 
elections  ever  enable  them,  as  a party,  to  secure  a place 
upon  either  the  primary  or  electoral  ballot. 

Moreover,  other  sections  of  the  law  providing  that  no 
candidate’s  name  shall  appear  under  more  than  one  party 
designation  on  either  the  primary  or  the  electoral  ballot, 
the  result  is  that  no  party  can  endorse  the  candidates  of 
another  party,  or  fuse  with  another  party  on  presidential 
electors  for  one  election  without  irretrievably  losing  all 
right  or  possibility  of  ever  again  appearing  as  a party, 
or  having  its  candidates  appear  as  party  candidates  for 
any  office  whatever.  The  same  result  would  follow  in 
the  perhaps  unlikely  but  conceivable  case  of  a party 
whose  presidential  voting  strength  should  for  one  elec- 
tion drop  below  one  per  cent  of  the  total  vote.  That 
such  a party  should  be  deprived  of  its  representation  so 
long  as  its  vote  remains  below  one  per  cent  is  perhaps 
perfectly  proper;  but  that  no  means  should  exist  by 
which  it  may  regain  its  place  on  the  ballot  when  its 
strength  has  risen  to  seventy-five  per  cent  of  the  voting 
population  seems  to  be  a defect. 

It  will  be  noticed  that  neither  of  the  defects  which  I 
have  pointed  out  is  necessarily  inherent  in  the  primary 
election  system.  While  the  number  of  votes  cast  at  the 
last  election  is  the  most  convenient  method  of  deter- 
mining party  strength  ordinarily,  yet  it  would  be  per- 
fectly feasible  to  provide  some  other  means,  as  by  nomi- 
nation papers  filed,  of  determining  this  fact  as  to  new 
parties,  and  thus  affording  them,  when  entitled  to  it,  an 
access  to  the  official  ballot. 


86  MICHIGAN  POLITICAL  SCIENCE  ASSOCIATION. 


The  respective  nomination  papers  are  to  be  filed  with 
either  the  Secretary  of  State  (for  state  officers,  senators, 
and  representatives  in  Congress,  and  those  members  of 
senate  and  assembly  whose  districts  comprise  more  than 
one  county)  or  with  the  county  or  city  clerks  according 
as  the  offices  may  be  county  or  city  offices. 

In  the  case  of  general  elections  each  county  clerk  is 
to  publish  in  papers  of  opposite  political  faith  a list  of  all 
persons  for  whom  nomination  papers  have  been  filed, 
whether  with  the  Secretary  of  State  alone,  or  in  his  own 
office  also,  does  not  appear  to  be  very  clear  from  the 
wording  of  the  statute.  It  is  probably  safe  to  hazard 
that  it  will  be  given  that  construction  which  will  most 
redound  to  the  advantage  of  the  public  printer.  These 
notices  are  also  to  be  posted  in  each  precinct,  and  they 
as  well  as  the  printed  notice  are  to  give  the  date  and 
hours  of  the  primary,  and  the  information  that  it  will  be 
held  at  the  regular  polling  place  of  the  precinct.  In 
other  words,  the  primary  is  to  be  as  well  advertised  as 
the  election  itself. 

The  official  ballot  is  to  be  prepared  by  the  county 
clerk,  advertised  and  distributed  precisely  as  the  electoral 
ballot.  It  differs  from  the  latter,  however,  in  this  fun- 
damental particular,  that  it  consists  of  as  many  separate 
tickets  as  there  are  party  nominating  papers  filed,  and 
a non-partisan  ticket,  all  fastened  together  at  the  top. 
The  voter  detaches  one  of  them,  and  votes  it,  putting  the 
unused  ones  into  another  box  where  they  remain  until  the 
close  of  the  polls  without  examination,  and  are  then 
destroyed.  Any  voter  may,  therefore,  without  any  state- 
ment of  his  political  affiliations,  vote  any  nominating 
ticket  he  chooses  at  the  primary.  But  he  may  vote  only 
one  ticket,  and  while  he  may  vote  upon  his  ticket  for  any 
candidate  named  upon  another  ticket,  yet  if  in  the  result, 
the  candidate  shall  be  successful  on  more  than  one  ticket 
“he  shall  forthwith  file  with  the  proper  officer  a written 


THE  NE  W PRIMARY  LA  W IN  WISCONSIN.  87 

declaration  indicating  the  party  designation  under  which 
his  name  is  to  be  printed  on  the  official  ballot.” 

This  provision,  I take  it,  cannot  be  considered  other- 
wise than  as  a concession  to  those  whose  trade  and  busi- 
ness are  politics.  The  practical  effect  of  it  is  to  compel 
every  party  to  have  a separate  candidate  for  every  office. 
It  prevents  combinations,  fusions  and  endorsements 
among  the  weaker  parties,  and  is  altogether  in  the 
interest  of  the  dominant  parties.  The  excuse  offered  for 
it  is  that  since  a plurality  of  votes  nominates,  and  any 
voter  may  vote  any  ticket,  any  other  practice  would 
permit  a strong  candidate  of  one  party  with  his  support- 
ers well  in  hand,  especially  where  the  opposition  to  him  is 
much  divided,  not  only  to  secure  a plurality  of  the  votes 
of  his  own  party,  but  also  a plurality  of  the  votes  of 
another  party,  or  perhaps  of  other  parties.  But  it  seems 
to  me  that  this  is  a danger  somewhat  fantastical  and 
remote,  and  that,  even  if  it  were  much  more  imminent 
it  should  be  avoided  by  some  test  of  party  affiliation  of 
the  voter,  or  an  abandonment  of  plurality  nominations, 
rather  than  by  making  it  impossible  for  worthy  men  to 
be  candidates  of  more  than  one  party.  Certainly  if  the 
latter  alternative  cannot  be  avoided  it  is  a grave,  inherent 
weakness  in  the  scheme,  which  may  well  give  us  pause 
before  we  extend  it  to,  for  instance,  the  judiciary.  In 
Wisconsin,  the  judiciary,  though  elective,  are  almost 
entirely  out  of  politics.  No  conceivable  advantages 
from  primary  reform  would  justify  throwing  them  back 
into  the  cess-pool,  wherein  they  wallow  in  some  other 
states. 

The  votes  cast  at  the  primary  are  canvassed  and 
returned  substantially  as  those  cast  at  the  general  election 
itself.  The  person  receiving  the  greatest  number  of 
votes  is  declared  the  candidate  of  his  party,  and  his  name, 
as  such,  is  placed  upon  the  official  electoral  ballot. 
Vacancies  occurring  after  the  holding  of  a primary  are 


88  MICHIGAN  POLITICAL  SCIENCE  ASSOCIATION. 


filled  by  the  appropriate  party  committee,  who,  with  the 
exception  of  the  state  central  committee,  are  elected  at 
the  same  time  and  upon  the  same  ballot.  The  party 
platform  is  to  be  adopted,  and  the  state  central  commit- 
tee elected  by  a convention  of  all  the  party  candidates 
for  state  offices  and  for  the  senate  and  assembly.  It  would 
seem  as  if  this  convention  might  well  be  charged  with 
the  additional  duty  of  naming  party  candidates  for  presi- 
dential electors,  so  long  as  these  useless  instruments  for 
recording  the  people’s  will  continue  to  encumber  an  age 
which  has  outgrown  them.  To  require  them  to  be  nomi- 
nated at  the  primaries  is  likely  to  be  unsatisfactory. 
Nomination  papers  for  the  empty  honor  of  being  a 
popular  amanuensis  are  not  likely  to  be  circulated  with 
much  zeal.  Yet  it  is  important  that  the  office  be  held  by 
men  of  character  and  responsibility.  For  it  must  be 
remembered  that  it  is  only  an  extra-legal  custom  that 
has  shorn  the  presidential  elector  of  the  discretion  and 
initiative  he  was  created  to  possess. 

These  are  all  the  features  of  the  law  that  it  is  neces- 
sary to  dwell  upon.  What  seems  to  me  its  most  funda- 
mental defect  remains  to  be  pointed  out.  It  is  that 
provision  which  makes  the  party  nominee  the  man  who 
receives  the  largest  number  of  votes  cast,  irrespective  of 
the  total  number  of  votes.  In  the  case  of  state  officers, 
as  has  been  pointed  out,  there  may  be  as  high  as  one 
hundred  candidates.  Such  a case  is,  of  course,  not  likely 
to  arise,  but  if  it  did,  it  is  obvious  that  two  per  cent  of  the 
total  vote  might  make  its  recipient  the  party  candidate, 
against  the  will  of  ninety-eight  per  cent  of  the  party  who 
had  voted  for  other  candidates.  Cases  will  probably  not 
be  rare  where  a third  or  a quarter  of  the  vote  will  prevail 
over  the  scattered  two-thirds  or  three-quarters.  The 
candidate  who  has  the  field  against  him  will  infallibly  win. 

It  is  said  that  in  the  history  of  political  conventions 
this  has  rarely  been  the  case.  One  of  our  great  political 


THE  NEW  PRIMARY  LAW  IN  WISCONSIN 


89 


parties  has,  as  is  well  known,  carried  conservatism  in  this 
particular  to  the  point  of  requiring  in  its  presidential  con- 
ventions a two-thirds  vote  to  nominate.  It  cannot  be 
regarded  otherwise  than  as  a grave  defect  in  such  a 
system  that,  under  it,  the  great  political  parties  are  quite 
likely  to  be  represented  by  candidates  who  are  the  choice 
of  but  a minority  of  their  parties.  And  note  that  where 
this  occurs  the  minority  that  is  represented  on  the  ticket 
will  be  composed  of  the  poorest  elements  of  the  party. 
For  it  is  they  who  are  most  easily  organized  into  a com- 
pact and  governable  body.  The  saloon  vote  will  be  con- 
centrated, the  respectable  vote  divided.  In  New  York 
the  candidates  of  Tammany  will  easily  secure  the  nomi- 
nations, since  that  institution  is  an  adept  both  in  con- 
centrating and  controlling  its  own  vote,  and  in  dividing 
and  dispersing  its  opponents.  That  these  fears  are  not 
idle  ones  is  shown  by  the  result  of  the  first  primary  of 
this  sort  at  Minneapolis,  when  the  notorious  “Doc”  Ames 
easily  secured  a plurality  nomination.  Of  course  such 
things  happen  in  conventions.  But  the  powers  of  evil 
are  there  immensely  handicapped  by  the  fact  that  they 
must  have  a majority — must  beat  their  opponents  not 
only  separately  but  unitedly.  To  permit  minority  nomi- 
nations is  to  play  into  their  hands  to  a degree  that  makes 
me  tremble  for  the  result. 

Is  there  no  way  of  escape  from  minority  nomination  ? 
Of  course  a re-ballot  confined  to  the  two  candidates  who 
had  received  the  highest  votes  would  be  a way  out.  But 
it  is  said,  and  I think  truly,  that  this  is  impracticable. 
The  great  body  of  voters  have  never  been  in  the  habit  of 
attending  primaries  at  all.  One  fundamental  purpose 
of  the  legislation  is  to  so  safeguard,  legitimatize  and 
rehabilitate  the  primary  as  to  tempt  these  voters  from 
their  timid  seclusion.  But,  if  you  would  do  this,  you 
must  be  merciful  to  them.  If  you  hold  up  before  them 
the  prospect  of  a double  primary,  you  will  scare  them 


90  MICHIGAN  POLITICAL  SCIENCE  ASSOCIA  TION. 


away  before  you  have  gotten  them  within  hailing  dis- 
tance. The  objection  on  the  score  of  expense  I do  not 
regard  as  serious,  since  all  the  expenses  of  every  sort  are 
borne  by  the  State,  which  may  well  pay  whatever  is 
necessary  to  secure  as  nearly  perfect  an  expression  of  the 
popular  will  as  possible.  But  the  other  objection  to  a 
second  primary  seems  to  be  insuperable. 

It  has  been  said  that  since  minorities  frequently  elect, 
and  no  serious  inconvenience  arises  therefrom,  therefore 
there  can  be  no  serious  danger  in  permitting  minorities  to 
nominate.  But  this  does  not  follow.  To  permit  a 
minority  to  designate  the  candidates,  and  then  a minority 
to  select  which  of  the  minority-designated  candidates 
shall  have  the  office  is  to  raise  a fraction  to  the  second 
power,  and  insist  that  it  is  no  smaller  than  before. 

The  only  purpose  of  a re-ballot  is  to  ascertain  the 
second  choice  of  the  voter,  his  first  choice  has  been 
already  expressed.  It  has  been  ingeniously  suggested  that 
there  is  no  necessity  of  a second  ballot  to  ascertain  this : 
that  the  voter  may,  at  the  time  he  indicates  his  first 
choice,  also  indicate  his  second,  and  that  the  second 
choices  of  those  supporting  the  lowest  candidates  be 
counted  until,  counting  his  first  and  second  choices,  some 
candidate  has  a majority.  It  would  seem  that  this 
method  would  accomplish  the  result,  the  only  objection 
being  the  possible  difficulty  of  educating  the  voters  to 
work  the  scheme  intelligently.  It  would  seem  that  this 
difficulty  ought  not  to  be  insuperable,  and  that,  so  far  as 
it  proved  so,  it  would  be  in  the  nature  of  an  easy  educa- 
tional test,  giving,  perhaps,  no  more  advantage  to  intelli- 
gence than  it  ought  to  have. 

But,  whatever  its  merits,  it  is  not  a part  of  the  law  as 
it  now  stands,  and  the  absence  of  some  provision  for  such 
result  seems  to  be  its  most  serious  defect. 

It  is  not  entirely  clear  how  the  law  will  work  when 
applied  to  presidential  electors  chosen  as  at  present  on  a 


THE  NEW  PRIMARY  LA  W IN  WmCONIHN.  91 

general  state  ticket.  It  would  seem  that  in  such  states  as 
New  York,  Pennsylvania,  and  Ohio  electing  those 
officials  by  the  score,  this  system  might  be  hard  to  oper- 
ate, and  might  easily  result  in  an  unfortunate  and  unrep- 
resentative choice.  The  liability  to  this,  however,  can 
be  greatly  lessened,  if  not  done  away  with,  by  the 
method,  formerly  in  vogue  in  some  states,  of  choosing 
electors  by  districts. 

When  all  is  said,  however,  the  law  is  one  which 
betokens  an  awakened  public  interest  in  elections,  and 
may  well  be  productive  of  much  good.  But  we  must 
not  expect  too  much  of  it.  It  will  not  regenerate  human 
nature.  At  bottom  the  trouble  with  the  old  system  of 
caucus  and  convention  was  nothing  more  than  that  the 
virtuous  and  intelligent  public  would  not  take  the  trouble 
to  work  it.  As  has  beeen  remarked  before,'  theoretically 
it  was  a well-nigh  perfect  instrument  for  expressing  the 
popular  will.  Its  abuses  grew  out  of  the  fact  that  most 
men  found  it  more  profitable  to  be  attending  to  their 
business  and  affairs  than  to  be  operating  the  machinery; 
whereupon  it  was  taken  in  charge  by  men  who  made  a 
business  of  operating  it.  The  new  system  is  more  diffi- 
cult for  the  professional  politicians  to  engross.  In  so 
far  as  the  primary  itself  is  concerned,  it  is  rendered  no 
more  respectable  than  it  has  been  for  some  years  in  Wis- 
consin and  many  other  states;  but  in  eliminating  the 
convention,  the  whole  electoral  process  is  placed  under 
legal  protection,  and  the  practice  made  certain  and 
uniform.  But  is  the  convention  abolished?  Already  it 
is  said  that  one  of  the  great  political  parties  in  Wisconsin 
will  hold  a pre-primary  convention,  at  which  its  candi- 
dates will  be  nominated,  and  its  platform  adopted.  If, 
and  in  so  far  as,  it  does  this,  there  is  almost  a certainty 
that  its  candidates  will  be  nominated  at  the  primaries, 
and  its  platform  re-adopted  by  the  September  convention 
of  candidates.  This  would  not  have  been  apt  to  happen 


92  MICHIGAN  POLITIC AL  SCIENCE  ASSOCIATION. 

with  respect  to  local  affairs  had  the  law  applied  to  them 
only.  But  it  is  entirely  possible  that,  by  reason  of 
attempting  too  much,  the  primary  may  become  a mere 
machine  for  registering  the  antecedent  decrees  of  a con- 
vention, and  as  useless  a piece  of  machinery  as  the  elec- 
toral college. 

Finally,  no  political  contrivance  is  likely  to  revolu- 
tionize human  nature,  or  prove  a panacea  for  political 
ills.  If  the  new  system  is  forced  to  appeal  in  its  opera- 
tion to  a public  indifferent  to  its  political  duties,  careless' 
of  who  may  be  candidates  for  office,  and  subject  only  to 
spasmodic  upheavals  of  post  factum  political  indignation, 
then  I,  for  one,  look  for  no  political  regeneration  to  come 
from  this  or  any  other  mechanical  contrivance  for  out- 
witting Satan.  But  the  very  demand  for  such  legis- 
lation, the  continued  agitation  of  the  subject,  resulting 
ultimately  in  the  defeat  of  the  obstructionists  are  them- 
selves hopeful  signs  of  an  awakening  of  the  public  con- 
science to  its  responsibilities,  and  of  a reviving  interest 
in  good  representative  government.  If  the  agitation  for 
electoral  reform  accomplishes  little  or  nothing  more  than 
such  awakening  and  revival,  it  will  have  served  a good 
purpose.. 


